Licence Appeal Tribunal File Number: 15070/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Kyle Edwards

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Kyle Edwards, Self-Represented

For the Respondent:

Sadia Ashraf, Program Advisor

HEARD: September 20, 2023

OVERVIEW

1Kyle Edwards, the appellant, appeals from the 45-day impoundment of his 2017 Ford Truck under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on June 30, 2023. At the time of the impoundment, one of his employees was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

2The appellant appeals on the grounds that the vehicle was stolen at the time it was impounded.

ISSUES

3The issues in dispute are:

i. Whether the vehicle was stolen at the time of the impoundment under section 50.2(3)(a) of the Act.

RESULT

4I find the vehicle was stolen, and therefore, pursuant to section 50.2(5), I order the respondent to release the vehicle.

ANALYSIS

The appellant’s vehicle was stolen at the time of the impoundment.

5The burden is on the appellant to prove on a balance of probabilities that the vehicle was stolen. I am satisfied that the appellant has established, on a balance of probabilities, that the vehicle was stolen at the time of the impoundment.

6The respondent presented unrefuted evidence that the employee’s licence was suspended for a prescribed Criminal Code offence pursuant to s. 55.1(1) of the HTA at the time of the impoundment. Accordingly, the vehicle was lawfully impounded.

7The word “stolen” is not defined in the Act.

8The Divisional Court, in the case of Marshall v. Ontario Registrar of Motor Vehicles, [2002] O.J. No. 745, (“Marshall”) has provided the following definition of “stolen” in the impoundment context. In that case, the Court stated that a vehicle is “stolen” within the meaning of the Act,

…when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

9The appellant testified that on the day of the impoundment he was away on vacation and at no point in time did he give his employee permission to take the vehicle as he was aware that he did not have a licence.

10The appellant owns a landscaping company, and the impounded vehicle is one of 10 trucks used for his business. He submits that the keys for these vehicles were all kept in a lock box but were not locked because 10 employees need access to it in order to carry out their employment tasks. He asserts that this particular employee never drove any of his vehicles while his licence was under suspension, and that he would always be a passenger in any vehicle transported to and from worksites.

11The appellant testified that the employee took the keys to his truck without his permission on the date the vehicle was impounded because he was aware that he was on vacation and would not notice that the vehicle was taken. The appellant did not ask the police to press charges because the employee made a mistake, he has two-young children, and he did not want to ruin his life. Since the impoundment he has kept the lock box secure.

12The Registrar takes the position that the appellant has not proven that the vehicle was stolen because he acknowledged during his testimony that the vehicle was not stolen it was taken without his permission. Further, he did not take preventative measures to ensure that the keys to all vehicles were in a locked and secure space. The Registrar submits that the appellant could have taken additional steps to prevent the employee from taking the vehicle.

13I find the appellant’s testimony to be credible and forthright, and I accept it. I find that that vehicle was stolen on the date of the impoundment because it was taken without the appellant’s permission. As highlighted in Marshall, the courts have defined a vehicle as stolen “when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.” In this case, the driver took the vehicle without the appellant’s permission to use it on a temporary basis. I find this is consistent with the definition of stolen highlighted by the court in Marshall.

14The respondent argues that because the keys were not locked up, they were accessible to the driver. However, I find that the availability of the keys does not equate to consent to drive the vehicle. Further, I find the appellant’s explanation that the keys need to be accessible to his other employees to carry out their employment tasks a reasonable explanation for why the keys were not kept in a lock box.

15Given all of the above, I find, on a balance of probabilities, that the driver took the appellant’s vehicle without his consent or permission with the intent of depriving the appellant of it. In the context of this case, this taking amounts to the driver having stolen the vehicle. The vehicle should therefore be released.

Conclusion

16The appellant has established that his vehicle was stolen at the time of the impoundment.

ORDER

17On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is allowed, and the respondent is ordered to release the appellant’s motor vehicle.